Private Law Theory

ABSTRACT
While private law has developed various causes of action for breach of privacy, the criminal law has seldom used the concept of privacy in defining its proscriptions. There is no recognised category of ‘privacy crimes’. But new technologies are posing ever more serious threats to our privacy. On the one hand, this has led to a ‘ramping up’ of privacy law protections, including a tort of misuse of private information recognised by UK courts (and explicit reliance on a broadly construed doctrine of breach of confidence for the protection of privacy in Australia). At the same time, there is a growing appreciation that privacy is a collective and social good, not only an individual good, and that some breaches of privacy affect large numbers of people and constitute serious public harms. In this chapter we suggest that as the law of privacy generally tilts more towards the public interest side, greater thought should be given to the benefits of including a punitive element in privacy cases that still ostensibly fit within the rubric of private law (or a data protection regime, or both together) but involve significant public harms. However, there is still a need to reconcile this position with the basic tenet of criminal law that that law, along with all its traditional protections, should be employed as the primary means of dealing with cases of egregiously wrongful conduct that results in serious harm. Specifically, the question we address concerns the role that private law ought to play in punishing breaches of privacy.

Roberts, Andrew and Richardson, Megan, Privacy, Punishment and Private Law (June 22, 2020) in E Bant, W Courtney, J Goudkamp and J Patterson (eds), Punishment and Private Law (2021: Bloomsbury).